27. Register of fresh produce received
| (1) |
Each export agent shall keep a register at his business address in which he shall on a continuous basis record all those particulars which are relevant in respect of each consignment of fresh produce received by him such as: |
| (a) |
the date of receipt of the consignment; |
| (b) |
the name and address of the principal and trading name from whom it was received; |
| (c) |
the number of any delivery note which accompanied it; |
| (d) |
the commodity and class and size or count and pack type of fresh product received; |
| (e) |
The quantity of crates or other containers or bins received; |
| (f) |
full particulars of the mode of transport; |
| (g) |
the container number; |
| (h) |
the temperature recorder number; |
| (i) |
the actual date of departure; |
| (j) |
target market or Country of Import. |
| (2) |
The particulars referred to in sub-rule (1) and which are already available or could reasonably have been available if the export agent made the necessary enquiries to the extent that would have provided him with such particulars shall— |
| (a) |
be recorded in such register in chronological order of receipt of the consignments concerned; and |
| (b) |
be thus recorded not later than 48 (forty-eight) hours following the day of receipt of the consignment concerned. |
| (3) |
If an export agent uses more than one register simultaneously, he shall notify the Council in writing of the number of registers that are in use. |
| (4) |
Records kept in terms of this rule may be kept in the electronic format approved of by the Council. |
| (5) |
Records kept in terms of this rule may be inspected by the Council or a person appointed by it upon reasonable notice to the Export Agent. |
| 28. |
Time Frames for shipping |
| (1) |
The time period between packing and shipping of the fresh produce shall be as demanded by the nature of the fresh produce concerned but shall not exceed the periods prescribed by the PPECB. |
| (2) |
An export agent shall at all times comply with the rules and regulations laid down by the PPECB made in terms of sub-rule (1). |
29. Dead freight and penalties for non-delivery against bookings
| (1) |
The export agent shall utilise the most recent crop estimate provided by the principal and which is on record not more than three 3 (three) weeks prior to the date of shipping for the purposes of making freight bookings, unless otherwise agreed in writing between the export agent and his principal. |
| (2) |
If the volume delivered by the principal is different from the volume used for the freight bookings as calculated, then the export agent shall use its best endeavours to minimise any penalties and/or dead freight costs. |
| (3) |
If penalties and or dead freight costs are incurred the principal shall be responsible for any such demurrage and/or dead freight costs, unless otherwise agreed in writing between the principal concerned and the export agent. |
| (4) |
Notwithstanding the aforementioned provisions, the export agent shall use his commercial best endeavours to contract with the carrier of the fresh produce (as agent for the principal) or such other entity responsible for shipping the fresh produce ( "the carrier") as to oblige the carrier to assume responsibility for demurrage and /or dead freight costs arising from instances related to force majeure. In such event the principal shall not be responsible for such costs. |
| 30. |
Marking of packed fresh produce |
| (1) |
If the cartons or other packaging in a consignment of packed fresh produce have not been appropriately marked by a principal, the export agent to whom it has been entrusted for sale shall indicate the production unit code of such principal and the name and address of the export agent and the prescribed specifications of the relevant fresh produce concerned on each carton or other packaging or on a label affixed thereto before presenting it for sale. |
| (2) |
Expenses attached to an action in terms of sub-rule (1) by an export agent shall be deemed to be expenses incurred by him in connection with the sale of that packed fresh produce, and shall be recoverable from the principal concerned. |
| (3) |
An export agent shall ensure that the cartons or other packing materials concerned remain thus marked until they are delivered to the importer or the purchaser (as the case may be). |
31. Reports on unsold fresh produce
| (1) |
In the event of a problem which materially affects the value of the fresh produce being detected by or communicated to the export agent, he shall forthwith: |
| (i) |
furnish the principal with a preliminary report in respect of any damage or deterioration which could materially affect the market value of the fresh produce concerned; |
| (ii) |
ensure temperature logs are downloaded and forwarded immediately by the receiver of the fresh produce concerned to the export agent; |
| (iii) |
assess whether any damage to or deterioration of the fresh produce reflects anything other than damage or deterioration of an inherent nature to the fresh produce including |
| (a) |
temperature deviations; |
| (b) |
shipping delays of more than three days; |
| (c) |
controlled atmosphere malfunctions; or |
| (iv) |
inform the applicable insurer of the situation and, if necessary, call for an independent survey of the cargo; |
| (v) |
keep his principal fully informed in writing in respect of all matters relating to the potential claim and the disposal of the consignment. |
32. Reporting to principals
The export agent shall on commencement of shipping of the fresh produce intended for export and thereafter whenever a material change takes place regarding the price and/or condition of the fresh produce concerned, communicate in writing the price and condition of the fresh produce concerned to his principal and shall, in doing so, provide his principal with the following particulars—
| (a) |
the amount and nature of each deduction in respect of expenses incurred in connection with the sale and delivery of the fresh produce concerned or in respect of any other service rendered by the export agent to the principal at the written request of the principal; |
| (b) |
the amount, rate or scale at which remuneration was claimed, and the amount of such remuneration; and |
| (c) |
particulars of fresh produce that have in terms of some or other law been found to be unsuitable to be presented for sale or have for another reason been withdrawn from sale. |
33. Miscellaneous duties of export agents
An export agent shall pro-actively manage and track the transportation and sale of the fresh produce, and shall use his commercial best endeavours to procure that the fresh produce entrusted to him shall not become unsuitable to be presented for sale.
| (1) |
A purchaser who purchased fresh produce from an export agent shall be entitled to make payment to an export agent in respect of fresh produce sold by him by way of a telegraphic transfer, a letter of credit, a crossed cheque or an electronic funds transfer for the credit of the bank account of the export agent concerned. |
| (2) |
An export agent who also trades on a fresh produce market where market management requires that payment in respect of fresh produce sold on such fresh produce market shall be made to market management shall not be allowed to accept payment in cash or in any other form for fresh produce sold by him. |
| (3) |
Payment made by an export agent to his principal for fresh produce sold by him on behalf of his principal shall be made by way of a telegraphic transfer or an electronic funds transfer to the credit of his principal's bank account or by way of a crossed cheque drawn on his bank account in favour of his principal. |
| (1) |
The export agent shall effect payment to any person incurring necessary costs ("the service provider') of all costs incurred by them on behalf of the principal, except where specified differently in writing or as in terms of the service level agreement concluded between the export agent and the principal concerned. |
| (2) |
All costs and disbursements incurred in respect of the fresh produce prior to its acceptance by the export agent at the point of intake, including but not limited to those in respect of the transport of the fresh produce to the point of intake, PPECB inspections and cold storage, shall be for the account of the principal, unless otherwise agreed in writing between the principal concerned and the export agent. |
| (3) |
All direct costs and disbursements attributed to the shipping of the fresh produce shall be for the account of the principal, unless otherwise agreed in writing between the principal concerned and the export agent. |
36. Payments and accounting to principals
| (1) |
An export shall make payment to his principal in the manner provided in rule 34(3) above as follows– |
| (a) |
if payment is received by the export agent earlier than 10 (ten) weeks after shipping, then payment to the principal shall be made not later than 10 (ten) weeks from shipping of the fresh produce unless his principal agrees in writing that payment may be extended to a later date, which extension however, may not be for a period longer than the last business day of the week in which the said ten week period lapsed; or |
| (b) |
if payment is received by the export agent more than 10 (ten) weeks after shipping, payment to the principal shall be made within 7 (seven) days after such payment was received. |
| (2) |
The amount of such electronic transfer or of such cheque shall correspond with the amount due indicated on the relevant statement issued to the principal concerned in terms of rule 36(7), provided that the amounts due as indicated on two or more such statements may be combined for the purpose of payment with a single cheque or a single electronic transfer, in which case the export agent concerned shall also issue a summarised statement to his principal on which the following particulars are indicated— |
| (a) |
the serial numbers of each of the statements referred to in rule 36(7) as well as the net amount due in terms of each such statement; |
| (b) |
the total net amount owning; and |
| (c) |
the number of the cheque or reference of the electronic transfer concerned. |
| (3) |
The date of issue indicated on such cheque or such electronic transfer shall not be later than the date on which it has to be forwarded or transferred (as the case may be) to the principal concerned in terms of sub-rule (1). |
| (4) |
An export agent who sells his principal's fresh produce locally, shall not be entitled without the prior written approval of his principal, who approved such credit either for a specific buyer, or generally for a category of potential buyers and the specific buyer falls within that category to sell his principal's fresh produce on the credit of his principal; provided however that such credit shall not be granted for a period longer than 30 (thirty) business days after date of the sales transaction concerned and provided further that the export agent shall: |
| (a) |
comply with the provisions of rule 36(6) below; and |
| (b) |
make payment in full to his principal, without any right of set-off, on the first business day following the expiry of the 30 (thirty) business day period referred to in rule 36(4), unless his principal agrees, in writing, that payment may be extended to a date not later than the last business day of that month. Payment shall be made with full written particulars of the amount received, the identity of the buyer who made payment, the sales transaction to which such payment relates and the amount remaining outstanding after such payment has been made. |
| (5) |
An employee shall not be entitled to sell the principal's fresh produce on credit without the prior written consent of his employer. |
| (6) |
Where an export agent with the prior written consent of his principal and on his principal's behalf and at the risk of the principal grants credit to a buyer, the export agent must at the written request of his principal furnish the principal with full particulars of the following information and, where such information is provided orally, must confirm such information within 5 (five) business days in writing: |
| (a) |
full business and trade names, registration number (if any), postal and physical addresses, telephone and, where applicable, cellular phone number, and Internet and e-mail addresses, in respect of that buyer, as well as the names and contact details of appropriate contact persons or offices; |
| (b) |
a copy of a document which records the amount for which, the terms and conditions on which, and the period (not to exceed the period referred to in rule 36(4) below) for which credit was granted; |
| (c) |
concise details of the legal and contractual status of the buyer, and whether the export agent holds guarantees or any other form of security for the outstanding debt or not, to be provided in a manner which can reasonably be expected to make it clear to the principal which person or entity accepts responsibility for the payment of the outstanding debt and the extent to which the principal will have to accept such responsibility. |
| (7) |
An export agent shall simultaneously with the payment referred to in sub-rule (1), issue a statement to his principal on which the following particulars are indicated: |
| (b) |
the name of the export agent concerned; |
| (c) |
the name and address of the principal concerned; |
| (d) |
the date or dates of sale of the fresh produce concerned; |
| (e) |
the number of the delivery note (if any) that accompanied the consignment; |
| (f) |
the kind and class or grade (if applicable) of fresh produce received, the quantity thereof that has been sold and the selling price and gross amount realised; |
| (g) |
the amount and nature of each deduction in respect of expenses incurred in connection with the sale and export of the fresh produce concerned or in respect of any other service rendered by the export agent to the principal at the written request of the principal; |
| (h) |
the amount, rate or scale at which remuneration was claimed and the amount of such remuneration; |
| (i) |
particulars of fresh produce that have, in terms of some or other law, been found to be unsuitable to be presented for sale or have for another reason been withdrawn for sale; |
| (j) |
in the event of a sale of fresh produce having taken place locally on credit (whether the credit has been granted by the export agent or by himself on behalf of his principal), particulars of the nature and extent of the credit that has been granted and particulars of the purchase of such fresh produce as required by sub-rule (6) above. |
| (8) |
When an export agent indicates particulars referred to in sub-rule (7)(i) on a statement he shall, when requested thereto by his principal or by the Council, provide a copy of the order by the appropriate authority that the fresh produce concerned has, in terms of some or other law, been found to be unsuitable to be presented for sale, |
37. Rights of Principal
| (1) |
The principal shall, at its own cost: |
| (a) |
be entitled to inspect any fresh produce which is alleged to be damaged or defective; |
| (b) |
advise the export agent in writing of its intention to inspect the fresh produce within 24 (twenty-four) hours of receipt of the report; and |
| (c) |
be entitled to make written submissions to the export agent with regard to the cause of such defect and/or damage. |
Civil Aviation Act, 2009
